POSITIVE OBLIGATIONS IN CRIMINAL LAW,

Criminal law, and especially the teaching of criminal law, is generally understood to be about the prohibition of specific conduct when accompanied by certain states of mind: what we ought not to do. The cleverness of Andrew Ashworth’s collection of essays is in his reading, as his title suggests, of the opposite: positive obligations, or those moments, doctrines, or elements of crimes that do or should require actions to be performed, what the individual and the state ought to do, e.g. the duty to know the law, the duty to obtain consent, the duty to ascertain (correctly) the ages of children in various strict liability situations, the duty to report (serious) crimes. I would consider this to be properly a work of Anglo-American legal scholarship; Ashworth uses mostly examples from English law (even in Chapter 4’s revision of a lecture presented in Ireland), but notes discrepancies where appropriate (e.g. handgun possession, pp.151-2).

After his years of distinguished service to and scholarship in the field, Ashworth certainly could have used this book to offer a systematic theory of criminal law (along the lines of Michael Moore, whose general theory is addressed several times); however, the theoretical aims of Positive Obligations are more modest: to “throw different shafts of light” on various duties (p.v), to put forward a “set of normative arguments” (p.215), to “debate principles” (p.128). This approach mitigates the ambitiousness of proposed reforms, making suggestions like the development of a defense of reasonable ignorance to the law appear not as a radical reform but merely the logical extension of a more robust (read: principled) approach to the state’s pre-existing duties of notice and publication. This seems to be a hallmark of Ashworth’s style, and an enviable one, coming across even when the profound reach of his suggested reform is foregrounded, as in his recent, highly accessible pamphlet arguing for abolishing imprisonment for most pure property offenses.

Although he reserves most of the second chapter, “Criminalising Omissions,” and a section of the following one, “Ignorance of the Criminal Law, and Duties to Avoid It,” for a discussion of the positive obligations of individuals, the majority of the book is concerned with those belonging to and especially those not met by the state. Indeed, he ends his strongest chapter on individual duty with lukewarm advocacy for a duty to report serious crimes with high risk to life or against vulnerable populations. One gets the sense that his heart isn’t really in the individual duty component promised in his preface and mentioned a bit defensively in the epilogue (“The eight chapters are not entirely about the positive obligations of the state,” p.214, emphasis mine). Compare the language [*197] at the end of Chapter 2: “A general reporting requirement for serious crimes would therefore be a major step…[but] … raises issues such as conflicting loyalties…police use of the offence as a controlling or bargaining tool, and uncertainty about what qualifies as a ‘serious offence’” (p.80) to the conclusions of Chapter 4 on strict liability – “any change in the law should be in the direction of a negligence-based standard and not strict liability … justice demands that a defendant should not be liable to conviction without the possibility of arguing absence of fault, and that imprisonment would be monstrously unfair in the absence of proof of fault” (p.129) – and Chapter 6 on risk-based possession offences – “…simple possession is an insufficient foundation for anything more than regulatory liability, and a substantial sentence for that is unjustifiable” (p.172).
This is less a criticism than a note on expectations, and maybe this is so because I was happier with the book Ashworth delivered than the one that seemed to be promised in the preface (and especially in the marketing). Where his use of positive, individual obligations is strongest and most persuasive is embedded in the chapters devoted primarily to the failure of state duties: either as a useful descriptive note on the presence of a positive duty as an element of a standard prohibitory crime, e.g. consent in rape, or as a normative suggestion for the addition of positive duties to existing crimes in an effort to remedy doctrinal weaknesses, e.g. changing strict liability handgun possessions laws to duties to meet licensing requirements and safeguard dangerous objects (p.169). (This is the second of two potential fixes, the first being requiring an intent element to mere possession rather than the implicit presumption of the possibility of future harm.)

The doctrinal weaknesses in criminal law that most concern Ashworth – the “preposterous” ignorance-of-the-law, strict liability, constructive (or unlawful act) liability, risk-based possession offences, and the responsibility of children – involve issues of notice and mens rea. These relate to close but distinguishable ideas of intent as the basis for culpability: the colloquial use of intent for notice (that assumed knowledge means we can impute, or feel that we should be able to impute, a species of intent to break law) and the traditional legal one for mens rea (that regardless of knowledge, you meant to do, or should have known your behaviour would cause, the prohibited act). In this way, Ashworth argues that criminal law should be brought back to law and, implicitly through the way he employs the terms fairness and justice, equity: that mens rea and notice are not ideals but actual requirements which are necessary to produce a criminal law that does what we tell law students it does and also what criminal law as censure-based, in Ashworth’s words, should do, “penalize substantial wrongdoing, and only substantial wrongdoing, enforcing those fairly and dealing with them proportionately” (p.25).

Those interested in putting forward a normative theory of Anglo-American criminal law must address the crisis of overcriminalization: the consequences of the extreme breadth and depth of criminal codes for legal norms (rule of law, fairness, equality, due process – [*198] yes, but also: mere reason). Ashworth opens with a hasty nod to the practical, political problem, noting the growth of offences, the “[p]oliticians, pressure groups, and journalists” who use new crimes as a way to “express themselves,” and government departments and agencies who tack on criminal offences to other statutes (p.1). This comment sets the stage for the treatment of the political dimensions of the criminal justice system, which garner less sophisticated analysis than the moral, philosophical, or jurisprudential ones. Though I think this can be acceptably dismissed as outside his clearly explained normative focus, it is worth noting for a law and politics review and can be occasionally jarring for a practicing attorney (like myself). In an excellent and thought-provoking analysis of the theoretical intersections of inchoate liability and liability in risk-based possession offenses, Ashworth wonders what is going on with criminal lawyers’ failure to address the inconsistency presented by not applying “substantial step” requirements of attempts law to negate mere possession (which would be in most circumstances fall under the “merely preparatory”). “Is it that criminal lawyers have simply failed to notice the inconsistency?” (p.160). He dismisses this promptly, but has trouble coming up with the principled reasons on which other lawyers might find a difference. I would guess this is because there aren’t any, and the inconsistency persists for no-less-problematic practical reasons, which are spelled out by the article he quotes a few pages later (and which I encourage you to read if you haven’t), William Stuntz’s engaging “The Pathological Politics of Criminal Law.” In a world of overlapping crimes and related crimes (of which all potentially applicable ones are brought down on any given defendant in the dizzying and terrifying explosion of counts and offenses), mere possession statutes are a very powerful, and very cheap, plea-bargaining weapon, a claim which Ashworth cites favorably from Stuntz’s work. But Stuntz’s point is broader than its use here: overcriminalization, wrongly and worrisomely, shifts a substantial part of adjudicating and law-making to prosecutors (Stuntz p.520). In this way, it doesn’t matter if criminal lawyers notice such inconsistencies, because the doctrinal criminal law, much less criminal lawyers, is rarely put in the position to address them.

But it, and we, should be. Ashworth’s excellent, detailed study of various critical doctrines merits reading, even, maybe especially, given, his answer to the title of his first chapter, where he most directly addressed practical limitations, “Is the Criminal Law a Lost Cause?”: “What are the prospects for thus re-structuring and restoring integrity to the criminal law? Political reality suggests that they are unpromising: in this sense, the criminal law may be a lost cause. Even governments with large parliamentary majorities, and which profess certain criteria for the creation of new offences, may either give way to the allure of media popularity or simply not care sufficiently to adhere to their own principles. In such political circumstances it is all the more necessary to re-kindle debate about the functions and characteristics that the criminal law ought to have” (p.30). A sad but honest start for a hopeful book about a hopeless cause. [*199]